Nguyen's Investment, LLC v. Jawad Almajedi

RENDERED: SEPTEMBER 16, 2022; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2020-CA-1122-MR

NGUYEN’S INVESTMENT, LLC APPELLANT

APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE AUDRA J. ECKERLE, JUDGE
ACTION NO. 20-CI-003794

JAWAD ALMAJEDI AND EMAN
ALMAJEDI APPELLEES

OPINION
AFFIRMING

** ** ** ** **

BEFORE: ACREE, MCNEILL, AND L. THOMPSON, JUDGES.

ACREE, JUDGE: Appellant appeals the Jefferson Circuit Court’s order granting

Appellees’ motion to dismiss. We affirm.

On July 2, 2020, Appellant filed a one sentence complaint, which

stated: “The [Appellees] owe the [Appellant] $6,600 for breach of Contract for

Deed and Note, plus late charges.” (Record (R.) at 1.) Appellant did not attach the

contract for deed or the promissory note to its complaint.
 In 2016, Appellant and Appellees memorialized their agreement by

executing a contract for deed and promissory note to convey realty in Louisville.

The record shows the purchase price as $227,000.88. Pursuant to the agreement,

Appellees did not pay Appellant but were to make monthly payments directly to

the IRS to satisfy an outstanding property lien.

The parties eventually closed the transaction on November 27, 2019.

Appellees’ attorney, Richard Hornung, served as settlement agent. The IRS

provided a lien payoff of $131,510.28 if received by the agency before December

9, 2019. That amount is shown on the settlement statement as “Payoff to United

States Treasury.”

Thinh X. Nguyen, a member of the Appellant, attended the closing

without counsel. He informed Hornung that Appellees failed to provide proof they

satisfied the IRS lien as required by the promissory note. Appellant claims before

closing Hornung said, “Go ahead and close and buyer will provide proof of

payment after closing.” Appellant relied on this statement and proceeded to close.

Appellant’s main concern appears to relate to three monthly payments

of $2,200 that were to be made just prior to closing. There is no proof in the

record that those payments were not made either before the closing or as part of the

$131,510.28 IRS lien payoff. Appellant’s brief simply focuses on Appellees’

-2-
failure to “provide proof of payment.” It appears the complaint was based on that

failure, not evidence of an unsatisfied lien.

Fifteen days after Appellant filed the complaint, Appellees moved to

dismiss it pursuant to CR1 12.02(f). Appellees asserted that Appellant’s

representative, Mr. Nguyen, was privy to documents from the IRS showing

Appellees made payments to satisfy the lien. Appellees included those documents

as attachments to their motion. Additionally, Appellees argued the merger doctrine

would prevent enforcement of any contracts or covenants prior to closing.

Appellant claims Mr. Nguyen’s ignorance of the law regarding the

merger doctrine should prevent its application here. Appellant urged the circuit

court to consider Hornung’s representation that proof of the three $2,200 payments

would be provided and his failure to inform Nguyen of the merger doctrine as

defrauding Appellant. This fraud theory is not found in even the most generous

reading of the complaint.

Shortly before the circuit court ruled on the motion to dismiss,

Appellant tendered an “Amended and Supplemental Complaint” that added a

single-sentence allegation that Appellees’ counsel agreed Appellees would provide

1
Kentucky Rules of Civil Procedure.

-3-
proof of lien satisfaction payments after the closing but failed to inform Appellant

that, because of the merger doctrine, such agreement would not be enforceable.

On August 17, 2020, the court dismissed the complaint with

prejudice, and separately denied Appellant’s motion to amend the complaint.

On appeal, Appellant claims the circuit court committed three errors.

First, the circuit court erred when it denied the Appellees’ motion to file an

amended complaint. Second, the circuit court erred when it dismissed Appellant’s

complaint. Third, the circuit court erred when it failed to dismiss Appellant’s

complaint without prejudice.

The standard for reviewing cases that come to the Court in this

procedural posture is thoroughly explained in D.F. Bailey, Inc. v. GRW Engineers,

Inc., where it states:

In ruling on a motion to dismiss, the pleadings should be
liberally construed in the light most favorable to the
plaintiff, all allegations being taken as true. Mims v.
Western-Southern Agency, Inc., 226 S.W.3d 833, 835 (Ky.
App. 2007). Therefore, “the question is purely a matter of
law.” James v. Wilson, 95 S.W.3d 875, 884 (Ky. App.
2002). Accordingly, the trial court’s decision will be
reviewed de novo. Revenue Cabinet v. Hubbard, 37
S.W.3d 717, 719 (Ky. 2000). Further, it is true that in
reviewing a motion to dismiss, the trial court is not
required to make any factual findings, Benningfield v.
Pettit Environmental, Inc., 183 S.W.3d 567, 570 (Ky.
App. 2005), and it may properly consider matters outside
of the pleadings in making its decision. However, reliance
on matters outside the pleadings by the court effectively
converts a motion to dismiss into a motion for summary

-4-
 judgment. McCray v. City of Lake Louisvilla, 332 S.W.2d
837, 840 (Ky. 1960); Kentucky Rules of Civil Procedure
(CR) 12.02.

350 S.W.3d 818, 820-21 (Ky. App. 2011).

Before engaging in our review of the merits of the Appellant’s

argument, we note Appellant fails to comply with the substantial briefing

requirement of “a statement with reference to the record showing whether the issue

was properly preserved for review and, if so, in what manner.” CR 76.12(4)(c)(v).

“If a party fails to inform the appellate court of where in the record his issue is

preserved, the appellate court can treat that issue as unpreserved.” Ford v.

Commonwealth, 628 S.W.3d 147, 155 (Ky. 2021). See Hallis v. Hallis, 328

S.W.3d 694 (Ky. App. 2010).

Striking arguments in a party’s brief challenging an unpreserved error

is an option. Hallis, 328 S.W.3d at 696 (citing Elwell v. Stone, 799 S.W.2d 46, 47

(Ky. App. 1990)). However, we are also empowered to “review[] unpreserved

claims of error” to determine if the circuit court’s alleged error “resulted in

‘manifest injustice.’” Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006).

None of Appellant’s arguments begin with a preservation statement.

We would be justified in striking the brief in its entirety. Nevertheless, we will

review the merits of Appellant’s second argument, challenging the dismissal itself,

because we can readily ascertain it was preserved in the circuit court and ignoring

-5-
the error is also an option. Hallis, 328 S.W.3d at 696. However, it is an option no

appellate advocate ever should rely upon this Court exercising. Martin v. Wallace,

__ S.W.3d __, 2022 WL 3641154, at *2 (Ky. Apr. 28, 2022) (finality Aug. 18,

2022) (“[F]ailing to comply with the civil rules is an unnecessary risk the appellate

advocate should not chance.”).

Upon review, we find no error in the circuit court’s dismissal of

Appellant’s complaint. That complaint’s single sentence states: “The [Appellees]

owe the [Appellant] $6,600 for breach of Contract for Deed and Note, plus late

charges.” The contract and promissory note mentioned preceded the deed

executed at closing. These facts implicate the merger doctrine.

The merger doctrine says that “upon delivery and acceptance of a

deed the deed extinguishes or supersedes the provisions of the underlying contract

for the conveyance of the realty.” Drees Co. v. Osburg, 144 S.W.3d 831, 832 (Ky.

App. 2003) (citing Borden v. Litchford, 619 S.W.2d 715 (Ky. App. 1981)). “Thus,

the merger doctrine ordinarily extinguishes the provisions of a purchase agreement

for the sale of real property upon acceptance of a deed conveying title to said

property.” Harrodsburg Indus. Warehousing, Inc. v. MIGS, LLC, 182 S.W.3d 529,

532 (Ky. App. 2005). In addition to the underlying contract, the merger doctrine

operates to merge “all prior statements and agreements, both written and oral,” into

the executed deed, leaving the parties bound only by the covenants in the deed.

-6-
Yeager v. McLellan, 177 S.W.3d 807, 809 (Ky. 2005). The merger doctrine

“applies to covenants pertaining to title . . . ,” Drees, 144 S.W.3d at 832, which

includes covenants to satisfy liens on property.

Here, the executed deed extinguished the promissory note because the

agreement represented by that note preceded execution of the deed. The proof of

payments promised in the promissory note pertained to title because, if Appellees

satisfied the lien prior to closing, Appellant would be able to present marketable

title to the Appellees at closing. Thus, by operation of the merger doctrine, the

pre-closing, pre-merger representations were resolved upon execution of the deed.

We recognize that “[o]ne exception to the doctrine of merger states

that false and fraudulent misrepresentations do not merge.” Yeager, 177 S.W.3d at

809 (citing Dunn v. Tate, 96 Ky. 373, 268 S.W.2d 925 (1954)). But this exception

does not help the Appellant here. Appellant’s allegations do not support a showing

of fraud which must be pleaded with particularity. CR 9.02. That particularity is

not pleaded even when considering the additional sentence urged in Appellant’s

tendered amended complaint.

Appellant’s reliance on ignorance of the law of merger will not avoid

its application. As every lawyer knows, “ignorance of the law is no excuse.”

Lawson v. Commonwealth, 425 S.W.3d 912, 916 (2014) (citing Jellico Coal

-7-
Mining Co. v. Commonwealth, 86 Ky. 373, 29 S.W. 26, 27 (1895)). We are not

persuaded that the circuit court erred in dismissing the complaint.

Because we are so authorized, we have reviewed for manifest

injustice only the circuit court’s denial of Appellant’s motion to amend and

Appellant’s argument that dismissal should have been without prejudice. Based on

the briefs and the record, we see no manifest injustice in affirming the circuit court.

The Jefferson Circuit Court’s August 17, 2020 order dismissing

Appellant’s complaint is affirmed.

ALL CONCUR.

BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:

Bert M. Edwards William A. Merrifield
Louisville, Kentucky Louisville, Kentucky

-8-